the solution

Recent Cases: Commonwealth

ZT and the Department of Home Affairs [2022] AICmr 4 (21 January 2022)

 

The applicant applied to the Department of Home Affairs (“Department”) for access to documents.  In April 2019, the Department advised the applicant that it had identified 11 documents falling within the scope of the request. The Department gave the applicant access to six documents in full, five documents in part and refused access to one document. 

 

In May 2019, the applicant sought review of the Department’s decision by the Office of the Australian Information Commissioner (“IC”) under s 54L of the Freedom of Information Act 1982 (Cth) (“FOI Act”).

In July 2019, the Department made a revised decision under s 55G of the FOI Act.  The Department gave the applicant access to three further documents, and access in part to three documents.

In July 2021, the Department made a further revised decision under s 55G of the FOI Act.  The Department gave the applicant access to seven further documents.

The Department relied on the exemptions in ss 37 and 47F of the FOI Act. The Department also deleted material that it considered irrelevant to the request under s 22 of the FOI Act.

During the course of the review by the IC, the Department submitted that the material it had found to be irrelevant to the applicant’s request was alternatively exempt under s 47E(c) of the FOI Act. 

The issues for the Acting Australian Information Commissioner (“Commissioner”) were:

  • whether the Department had taken all reasonable steps to find documents within the scope of the request (s 24A of the FOI Act);
  • whether the material the Department found to be irrelevant to the applicant’s request was irrelevant to the request (s 22 of the FOI Act); 
  • if not, whether the material the Department found to be irrelevant to the applicant’s request was alternatively exempt under s 47E(c) of the FOI Act, and if so, whether giving the applicant access to conditionally exempt documents at that time would, on balance, be contrary to the public interest (s 11A(5) of the FOI Act); 
  • whether the material that the Department found to be exempt under s 37 of the FOI Act was exempt under that provision; and 
  • whether the material that the Department found to be exempt under s 47F of the FOI Act was exempt under that provision, and if so, whether giving the applicant access to conditionally exempt documents at that time would, on balance, be contrary to the public interest (s 11A(5) of the FOI Act). 

Irrelevant material: s 22 

 

The Commissioner considered that the exclusion of names and contact details was not apparent on the face of the request and the Department had not received positive confirmation from the applicant that that information was irrelevant to the request.  Further, the Department’s decision to release the names of some officers, without explanation as to why those particular names were considered to be relevant, was inconsistent with the Department’s maintained submissions that the names of Departmental officers were irrelevant to the request.

 

The Commissioner was not satisfied that the names, e-mail addresses and direct telephone numbers of Departmental officers that the Department considered to be irrelevant, were irrelevant to the applicant’s request.  It was then necessary for the Commissioner to consider the Department’s alternative contentions, that the information was conditionally exempt under s 47E(c) of the FOI Act, and that giving access to that conditionally exempt material would, on balance, be contrary to the public interest (s 11A(5) of the FOI Act) (see below). 

 

Whether reasonable steps taken to find documents: s 24A 

 

Having regard to the scope of the applicant’s request, the parties’ submissions and the Department’s evidence of original and further searches conducted during the IC review, the Commissioner was satisfied that the Department had taken all reasonable steps to find documents within the scope of the request as it was required to do by s 24A of the FOI Act and that relevant documents, if they existed, would have been found.

 

Disclosure of confidential source exemption: s 37(1)(b)

 

The Department found that certain information was exempt under s 37(1)(b) of the FOI Act.  The information contained allegations of a potential breach of migration law.

The Commissioner acknowledged that s 37(1)(b) of the FOI Act was intended to protect the identity of a confidential source of information connected with the administration or the enforcement of the law. 

 

The relevant documents included forms submitted to the Department via its website.  In regard to the first document, the person answered ‘yes’ to the question ‘Do you wish to remain anonymous?’.  The Commissioner was satisfied that the information was supplied on the understanding that the source’s identity should remain confidential.

 

In regard to the second document, the person did not provide their name, and the wording of the website at that time included confidentiality assurances.  The Commissioner was satisfied that the information was communicated by a confidential source.

The Commissioner relied on ‘QQ’ and Department of Home Affairs (Freedom of Information)[1]where the Australian Information Commissioner was satisfied that a form submitted to the Department anonymously via its website in relation to an allegation of customs, trade or border protection offence was exempt under s 37(1)(b) of the FOI Act.  Relevantly, that although the sources of information did not provide their name, that their identity could be ascertained from the information contained in the documents.  Further, on the basis that they had expressly chosen to remain anonymous, that they would have wished their identity to be known only to those who need to know it for the purpose of administering the law, and that the information was supplied on the express understanding that their identity would remain confidential.

 

Accordingly, the information was found to be exempt under s 37(1)(b) of the FOI Act. 

 

Certain operations of agencies exemption: s 47E(c)

 

The Commissioner outlined the main requirement of the exemption is that disclosure of a document would, or could reasonably be expected to, have a substantial adverse effect on the management or assessment of personnel by the Commonwealth or an agency. 

In its submissions, the Department referred to its obligations under the Work Health and Safety Act 2011 (Cth), including the requirement for the Department to take reasonable steps to eliminate or minimise the risk to staff of harassment or threats from the public.

 

The Commissioner found that the Department had not explained how disclosure of the officer’s names and direct contact details to the applicant would expose its staff to inappropriate unsolicited approaches, personal attacks and harassment.  In fact, the Department had not identified any issues of particular concern in relation to the applicant’s behaviour or contact with departmental staff.

 

The Commissioner held to refuse access to a document under s 47E(c) of the FOI Act on this basis, inappropriate unsolicited approaches, personal attacks and harassment must be reasonably expected to occur as a result of the disclosure of the documents in the particular circumstances of the case.

 

The Commissioner was not satisfied that the Department had established that the disclosure of the names or contact information of Departmental officers would have the predicted substantial adverse effect on the management of the Department’s personnel. 

 

Personal privacy exemption: s 47E(c)

 

The information that the Department decided was exempt under s 47F of the FOI Act included names, a comment that the Department had created a ‘client of interest’ note in relation to the applicant and another individual and reports in relation to another individual.  The Commissioner was satisfied that the information was personal information for the purposes of s 47F of the FOI Act.

 

The Commissioner was satisfied that the disclosure of the personal information would be unreasonable in the circumstances as the information was not well known or available from publicly available sources, the individual had not consented to the disclosure and the Department is obliged to take steps to prevent the unauthorised disclosure of personal information. 

 

Section 11A(5) of the FOI Act provides that, if a document is conditionally exempt, it must be disclosed ‘unless (in the circumstances) access to the document at that time would, on balance, be contrary to the public interest’.  The Commissioner considered that in the circumstances, that greater weight should be given to the protection of personal privacy. Therefore, giving the applicant access to the individual’s names and reports about the individual, on balance, would be contrary to the public interest. 

 

HELD

Under s 55K of the FOI Act, the Commissioner set aside the decision of the Department and substituted it with its decision that the information that the Department found to be irrelevant was not irrelevant to the applicant’s request, and the material that the Department submitted was exempt under s 47E(c) of the FOI Act was not exempt under that provision. The Commissioner affirmed the remainder of the Department’s decision.

 

[1] [2019] ALCmr 49. 

 

Australian Conservation Foundation Incorporated and Minister for the Environment (Freedom of Information) [2022] AATA 307 (23 February 2022)

 

The Australian Conservation Foundation Incorporated (“applicant”) made a request to the Minister for the Environment (“Minister”) for e-mails between the Prime Minister’s Office and the Minister’s office in relation to major project announced on the Department of Prime Minister and Cabinet’s website.

The respondent identified two documents that fell within the scope of the request. The respondent refused access to the documents on the basis that the documents were exempt under s 34 and conditionally exempt under s 47C of the Freedom of Information Act 1982 (“FOI Act”).

 

In October 2020, the applicant sought a review of the decision by the Office of the Australian Information Commissioner (“IC”).  In February 2021, a delegate of the Australian Information Commissioner (“Commissioner”) made a decision pursuant to s 54W(b) of the FOI Act not to undertake a review as they were satisfied that the interests of the administration of the FOI Act made it desirable that the reviewable decision be considered by the Administrative Appeals Tribunal (“AAT”).

 

Subsequently, in March 2021, the applicant applied to the AAT under s 57A(1)(b) of the FOI Act for review of the decision. 

The dispute was ultimately resolved by consent, after the Minister agreed to release each of the documents to which access had initially been denied, with deletions for irrelevant material.

 

The applicant then sought a recommendation under s 66(1) of the FOI Act that the applicant’s costs in relation to the proceeding be paid by the Commonwealth. 

The issue for the AAT was whether s 66(1) of the FOI Act applied at all and if it did, would a recommendation be appropriate.

 

AAT to make recommendation that costs be available in certain circumstances: s 66(1)

Section 66(1) of the FOI Act requires two matters to exist before the discretion to recommend costs is enlivened:

  1. First, a person must have applied under s 57A of the FOI Act, to the AAT for review of a decision of the Commissioner on an IC review: s 66(1)(a) of the FOI Act; and
  2. Second, the person must be ‘successful, or substantially successful, in his or her application for review’: s 66(1)(b) of the FOI Act.

In relation to the first matter, the AAT observed that a person who applies to the AAT under s 57A(1)(a) of the FOI Act applies for review of the Commissioner’s s 55K decision on an IC review. On the other hand, a decision made under s 54W(b) of the FOI Act is a decision not to undertake an IC review or not to continue to undertake an IC review.  A decision under s 54W(b) of the FOI Act not to undertake an IC review is the antithesis of a decision of the Commissioner on an IC review under s 55K of the FOI Act. 

 

When a person makes an application under s 57A(1)(b) of the FOI Act, the  AAT reviews the IC reviewable decision.  It does not review the decision of the Commissioner under s 54W of the FOI Act not to undertake an IC review. This is because such a decision cannot be reviewed by the AAT. 

 

In this case, there was no IC review and no decision by the Commissioner under s 55K of the FOI Act on that review. Instead, there was a decision under s 54W(b) of the FOI Act not to undertake an IC review. 

 

The applicant’s application to the AAT is to review the Minister’s decision (the IC reviewable decision) not the Information Commissioner’s decision under s 54W(b) of the FOI Act. 

 

The AAT therefore found that an application under s 57A(1)(b) of the FOI Act is not an application for review of a ‘decision of the Information Commissioner on an IC review’ and does not fall within the scope of s 66(1) of the FOI Act. As a result, the AAT does not have power to make a recommendation to the Minister that the applicant’s costs in relation to the proceeding in the AAT be paid by the Commonwealth. 

 

Would a recommendation have otherwise been appropriate?

 

The AAT made it clear that even if it had the power under s 66(1) of the FOI Act to recommend that the costs of the applicant in relation to the proceedings be paid by the Commonwealth, having considered the matters in s 66(2) of the FOI Act and the submissions of the parties, it would have declined to have exercised that discretion. 

The AAT did not accept the applicant’s argument that the Minister was responsible for delays in a way which result in a costs recommendation in the applicant’s favour. The AAT concluded that the Minister conducted the proceedings appropriately, and made concessions, ultimately leading to the resolution of the substance of the dispute. 

Finally, the AAT noted that s 66(1) of the FOI Act should not be read as containing any presumption in favour of a costs recommendation where an application for review has been successful.  Each case will turn on its own particular facts. 

 

HELD 

The application for the AAT to make a recommendation under s 66(1) of the FOI Act was refused.